Summary Contempt Power in the Military: A Proposal to Amend Article 48, UCMJ

AuthorColonel David A. Anderson




Get your checkbooks out. Right now! I'm not going to tolerate this thing any more.

Judge Lance Ito, moments before fining two lawyers $250.00 for arguing with each other in The People of the State of California v. Orenthal James Simpson.2

Summary punishment always, and rightly, is regarded with dis-favor and, if imposed in passion or pettiness, brings discredit to a court as certainly as the conduct it penalizes.

Justice Jackson, speaking for the U.S. Supreme Court in Sacher v. United States3

I. Introduction

Accused of rape, the young Marine Corps corporal stood at attention as the President of his general court-martial began to read from the fin

ings worksheet: "Of the charge and specification thereunder, Guilty." Stunned and enraged, the corporal lifted the crimson Manual for Courts-Martial4 (Manual or MCM) from his counsel's table and threw it with great force at the President. That day, the corporal's aim was as bad as his luck. The Manual impacted harmlessly against the members' box and came to rest on the floor of the courtroom.

Reality quickly returned to the corporal, and he sat down next to his counsel, gazing sorrowfully at the court members. He awaited the sentencing phase of his trial. What awaited the corporal, however, was his introduction to Article 48, Uniform Code of Military Justice (UCMJ),5 the military's summary contempt power. This power, exercised without notice to the accused or the opportunity to be heard, is intended to quickly compel respect for the authority of the court. An expeditious disposition did not follow.

Once order was restored, the military judge permitted the sentencing phase of the court-martial to continue. Shortly thereafter, the court members announced a sentence that included confinement for twenty years, total forfeitures, reduction to E-1, and a dishonorable discharge. The court members were then excused from the courtroom, but the trial was not yet over.

Before adjourning the court-martial, the military judge informed the corporal that he was initiating a contempt proceeding against him. This contempt proceeding consisted of the military judge reciting for the record the facts of the corporal's earlier histrionic behavior and stating that he had directly witnessed the corporal's actions. He then asked the corporal and his counsel to rise and announced a second verdict: "I find you guilty of contempt and sentence you to be fined $100 and confined for three days." The corporal, with no Manual at hand, returned to his seat.

Incredibly, the contempt aspect of the trial was not over yet. Several days after the trial had ended, the military judge authenticated that portion of the record of trial involving the contempt proceedings. He forwarded the record to the convening authority, the commanding officer who had originally convened the general court-martial for rape. This officer had the power to approve or to disapprove the contempt sentence. After reviewing

the record, the convening authority approved the $100 fine, but disapproved the confinement. He gave no reason.

Two years later, based on a petition for extraordinary relief under the All Writs Act,6 the U.S. Court of Appeals for the Armed Forces reviewed the corporal's contempt conviction and found it deficient on two grounds. First, the court concluded that in a trial by court members, the power of contempt under Article 48, UCMJ, was reserved to the court members. The military judge in this case had no authority to conduct the contempt proceeding. Second, the failure of the contempt proceeding to be conducted immediately after the contemptuous behavior occurred deprived the court of its authority to hold the corporal in summary contempt without a hearing. Accordingly, the finding of contempt and the sentence were reversed.

Although this story is fictional, it is a realistic application of Article 48, UCMJ, and its current procedures found in Rule for Courts-Martial (R.C.M.) 8097-a process that the U.S. Court of Appeals for the Armed Forces once called "an anachronism" and "obsolete."8 While a recent amendment to the Manual attempted to resolve several of the procedural difficulties in applying Article 48, UCMJ,9 the real problem lies with the statute itself, which needs extensive revision to become effective.

This article explores the shortcomings in Article 48, UCMJ, and its application, and proposes a comprehensive solution in the form of a revised statute. To arrive at this solution, the article examines the general history behind the summary contempt power and the nature of what contemptuous conduct may be punished summarily. Next, it provides an overview of state summary contempt statutes, it examines the history of Article 48, UCMJ, and its application, and it surveys the views of current military trial judges concerning their use of the summary contempt power. Finally, this article exposes the deficiencies in Article 48, UCMJ, and its application. Although acknowledging that an argument can be made for the repeal

of the statute, this article argues instead for a complete revision and offers a proposed statutory change.

II. History of the Summary Contempt Power

In its origins in Anglo-Saxon jurisprudence, contempt encompassed any act disrespectful to the king, whether it was an insult or disobedience to a lawful order.10 Although the contempt could occur directly to the king himself, most frequently it occurred against the courts.11 Regarded as a crime, it "derived its criminality from the active interference with the crown or its acting official agents [the courts],"12 and upon conviction, it was punished by imposing criminal sanctions.13 One of the first cited cases of criminal contempt occurred in the seventeenth century and involved a criminal defendant who threw a brickbat at the presiding judge.14 The judge immediately held the defendant in contempt and ordered his right hand cut off.15

The power to find contempt and impose punishment is rooted in the common law and long recognized by the United States Supreme Court.16

Commentators, courts, and the American Bar Association (ABA) all agree that the general contempt power is inherent in the judiciary.17 "The contempt power enables the courts to perform their functions without interfe

ence, to control courtroom misbehavior and to enforce orders and compel obedience."18 As early as 1873, the Supreme Court wrote:

The power to punish for contempt is inherent in all courts; its existence is essential to the preservation of order in judicial proceedings, and to the enforcement of the judgments, orders, and writs of the courts, and consequently to the administration of justice. The moment the courts of the United States were called into existence and invested with jurisdiction over any subject, they became possessed of this power.19

In general, contempt of court can be divided into two categories: criminal contempt and civil contempt.20 Criminal contempt occurs when the primary purpose is to preserve the authority or dignity of the court or to punish for disobedience of its orders (that is, punitive in nature).21

Where the primary purpose is to enforce the rights of private litigants or to coerce compliance with its orders (that is, remedial in nature), the contempt is civil.22

In determining the due process necessary to resolve criminal contempt, courts and commentators generally further divide contempt into direct contempt and indirect (or constructive) contempt.23 Direct contempt occurs in the actual presence of the court while it is in session, and it is generally punishable summarily, without notice or the opportunity to be heard.24 Examples of direct contempt include: (1) a defendant referring in open court to a judge's offer to continue the case as "protracted bullshit;"25

(2) an attorney's "[c]ontinued argumentation in the face of a judge's contrary ruling;"26 (3) a defendant's act of standing up, unzipping his pants, and urinating in court during the government's closing argument;27 (4) a prospective juror's refusal to take a seat in the jury box after being ordered

to do so by the judge;28 (5) a defendant's act of striking the prosecutor during a sentencing hearing;29 (6) an attorney's disobedience of a court's order regarding the permissible scope of cross-examination;30 (7) a courtroom observer taking a photograph in court in direct defiance of a court order prohibiting such conduct;31 and (8) a defendant directing "a contumelious single-finger gesture at the trial judge"32 or telling a witness on the stand, "You're a god damn liar."33

Indirect contempt, on the other hand, occurs outside the presence of the court, and it is punishable only after notice and a hearing. The accused has the right to counsel, to present evidence, to examine witnesses, and if the offense is serious, to a jury trial.34 Examples of indirect contempt include: (1) an attorney failing to appear in court at the time scheduled;35

(2) an attorney advising a witness to disregard a judge's earlier instructions to remain available for later testimony;36 (3) jurors violating a judge's sequestration order by leaving the jury quarters, visiting local taverns, and drinking and commingling with the public;37 (4) an interested party

attempting to influence the testimony of a potential witness38 or the minds of potential jurors;39 and (5) an attorney filing pleadings containing "irrelevant, untrue, and scurrilous allegations."40

The summary power to punish direct criminal contempt is unique in its lack of procedural due process. The court has the power to proceed as victim, prosecutor, judge, and jury, and upon its own knowledge of the facts, "punish the offender, without further proof, and without issue or trial in any form."41 The Supreme Court has defined the word "summary" used in this context to mean "a procedure which dispenses...

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